Blizzard Wins v. WoWGlider

Before some comments on the ruling, I should say that I really enjoy reading these early opinions on virtual worlds and law just to see how courts summarize basic facts. For instance, check out how the court summarizes arguments by Blizzard and MDY about the nature of suit--as far as I know, this is the first time a federal court has described gold farming in a judicial opinion:

Blizzard contends that Glider diminishes the value of WoW and causes Blizzard to lose customers and revenue. Blizzard asserts that WoW is a carefully balanced competitive environment where players compete against each other and the game to advance through the game’s various levels and to acquire game assets. Blizzard claims that Glider upsets this balance by enabling some payers to advance more quickly and unfairly, diminishing the game experience for other players. Blizzard also contends that Glider enables its users to acquire an inordinate number of game assets – sometimes referred to as “mining” or “farming” the game – with some users even selling those assets for real money in online auction sites, an activity expressly prohibited by the TOU.

MDY, by contrast, claims that Glider enhances the game playing experience of its users and even enables some disabled users to play WoW. MDY contends that Glider users constitute a small fraction of WoW players and that the effect of Glider on WoW is minimal. MDY characterizes itself as an innovator and entrepreneur, and claims that Blizzard seeks improperly to use the copyright laws to squelch competition and stifle innovation.

On the issue we previously discussed here, the copyright claim, the court finds that Ninth Circuit doctrine supports Blizzard, explicitly noting with respect to the amicus briefing that "Although the Court appreciates these policy arguments and has benefitted from their excellent presentation, the Court is not a policy-making body." (See footnote 3.)

Summing up the copyright issues, the court states:

The Court reaches the following conclusions on the basis of undisputed facts, construction of the EULA and TOU, and controlling Ninth Circuit law: Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.

On the other claims

MDY did not prevail on its motion for summary judgment on Blizzard's unjust enrichment claim. So Blizzard still has the ability to bring that claim to trial.

MDY won in part on one of the DMCA claims, based on the fact that players had open access to certain portions of the software claimed to be protected--with or without the operation of Glider. This is interesting, but much of the DMCA claims were left for trial. The court seemed to say the factual record was too muddled for summary judgment.

The section on whether MDY's action constitute tortious interference with Blizzard's contractual relationship with players is very interesting. After applying the standard test, the court drills down to the key question of whether it is an "improper" business for MDY to sell a bot program that can be run on WoW. In short, it is improper, according to the court (applying Arizona law which applies the Restatement (Second) of Torts).

Why? Well, for example, here are the first two factors in the 7-factor test for impropriety in interference with contractual relations:

The first factor concerns the nature of MDY’s conduct. The following facts are not disputed: MDY knowingly aids WoW players in breaching their contracts with Blizzard; MDY assists the players in gaining an advantage over other WoW players; MDY enables players to mine the game for their own financial benefit and in direct violation of the TOU; MDY assists players in avoiding detection by Blizzard, and does so in a way designed to place Blizzard at risk. In MDY’s own words, “[s]taying one step ahead of Blizzard is just about impossible,” so MDY seeks to make it “bad business” for Blizzard to spend time and money trying to detect Glider. Dkt. #43-10 at 3. MDY seeks to make it a “bad idea” for Blizzard to try to detect Glider because counter-measures Blizzard must create to detect Glider presentthe “risk [of] banning or crashing innocent customers.” Id.

The second factor concerns MDY’s motive. That motive is clear – profit. MDY’s business strategy is not to accept and honor the pre-existing contract between Blizzard and its customers, but to take advantage of that relationship for MDY’s financial gain.

There are five more factors, but you get the idea: enabling gold farming & EULA violations for profit = not cool.

It will be interesting to see whether the parties decide to bring the other claims to trial or if they settle. An appeal by MDY is also possible. But in any case, this is a big win for Blizzard.

(It's also, as mentioned before, a bit disturbing from the standpoint of the way virtual world EULAs integrate with copyright policy.)

"(It's also, as mentioned before, a bit disturbing from the standpoint of the way virtual world EULAs integrate with copyright policy.)"

Yup. My only hope is that there were real merits (i.e., some that I haven't see, from my limited look at the case) to Blizzard's case. I hope it wasn't just that they had more legal firepower. The EULA implications are unpleasant.

Hopefully the courts will choose to push one way or the other on first sale and not attempt to impose judicial "nuance" on which parts may be licensed versus "sold".

Also, this outcome does not bode well for future litigation against gold sellers in general. While I'm all for banning glider and demanding payment from MDY I'm considerably more lukewarm at the prospect of enshrining into law the status quo vis a vis digital property.

As an actual WoW player I couldn't be more pleased. I am not interested in games where people cheat and one of the most pleasant things about Blizzard is their continuing attempts to keep the game as clean as possible.

What might be the section of this decision that has the biggest impact is section IV on contract interference. Before this MMO companies have had a hard time using the law to attack companies that sell virtual property and characters because courts haven't been willing to accept that these sales have hurt the MMO company. This court, on page 23, accepts Blizzard's claim that complaints and loss of subscribers due to the glider counts as harm to the company. Now all an MMO company like Blizzard needs to show in order to sue a company that hosts sales of avatars is that the sales caused complains, that the MMO company had to put resources into fighting these sales, and/or that they lost some users who complained about these sales. Im not sure if I think avatar sales are a bad thing, but this court's decision is certainly going to impact them.

I really don't understand how this is copyright infringement. Is it because MDY creates a derivative work of the RAM copy of WoW, or is it merely because to use Glider, a copy of WoW must be in the RAM. The court seems to say that it is okay for Blizzard to say in the license that if you modify the game EXPERIENCE that will be copyright infringement. Not the code, not the copyrighted work, but the EXPERIENCE.

To me that is total BS. That is clearly broadening the scope of copyright protection. So is listening to LOTRO music on iTunes while I play WoW copyright infringement because it changes my EXPERIENCE? Ridiculous. I dearly hope that I misread something, or don't understand as the court clearly does not convey how Glider affects the RAM copy of WoW.

Hi Ravious -- According to the decision, MDY is not on the hook for direct infringement (because *it* infringes copyrights) but instead because the users of Glider infringe copyrights and MDY contributes to that infrginement by selling and promoting Glider.

The problem for the use of Glider is WoW, in operation, requires portions of the software to be copied to RAM. Users don't own the software technically -- they are licensees and their use is restricted to use in accordance with the license. That EULA/TOS prohibits certain forms of use of the software and Glider violates those terms -- hence the use of Glider while playing WoW = copyright infringement.

The policy problem here, which we discussed in the earlier thread, and which the amicus brief by Public Knowledge raised, is that we can easily imagine certain types of copyright fair use (or socially beneficial use or generally harmless use) being prohibited by the EULA/TOS. If that was the case, nothing here suggest that those forms of use would not also constitute copyright infringement.

Personally, as I said in the prior thread, I'm okay with this outcome on the specific facts of the case (and Public Knowledge seemed to be okay with it too), but I'm bothered by what this means for digital copyright down the line. It would have been better to have the case resolved on the unfair competition and tortious interference grounds, which seem to me a more promising direction for legal policy. But the court said it was simply following Ninth Circuit precedent, which controls, so it wasn't free to make up its own rules. In fact, footnote 3 seems to suggest that the court is pretty sympathetic to the policy arguments made by Public Knowledge.

Thanks for the reply. I guess I noticed this too late in the game to be fully on board. I am just worried that this does expand copyright protection too much, and it may give other corporations a little more rope to make the sometimes wishy-washy click-through's a little more wishy-washy.

I am sorry for my ignorance, but IMHO it seems that Blizzard is trying to rope an activity that normally would not fall under the purview of copyright protection. I didn't think copyright licenses could proactively bar you from doing other activities that do not modify the work. And that is what scares me about this ruling.

Anyway, glad I came across this blog, and thanks for the response again. RSS'd.

We posted a blog post on this over at GameRates.com on what this means for some other ToS/EULA violators such as virtual currency sellers:

"What does this mean for the gold industry however?

First off it may embolden Blizzard to actually take on major gold sellers in the courtroom. However, this could be a very dangerous move as if they lost or perhaps a U.S court found that virtual currency has real worth it could awake the sleeping giant of legal problems. For example if Blizzard bans someone accidently, or it’s servers crash, or they nerf an item all which destroy virtual goods (with real legal value) in the process one may be able to sue Blizzard for these “real” damages caused. For this and many other reasons we doubt that such a case will arise although the reverse may be true (a gold farmer suing blizzard for preventing them from selling its legally acquired in-game goods for cash outside the game). For those of you that have been around for a while you may remember the BlackSnow Case against Mythic where such a thing happened.

Still the scary thing is the wide ruling that violating a Terms of Service (ToS) or End User License Agreement (EULA) that you haphazardly click every time you play the game can be counted as copyright infringement. An EULA can say virtually anything it wishes. Does violating any part of it really count as copyright infringement? If you choose to farm items by hand using normal game mechanics without interfering with anyone else and then you mail the items you acquire to another person that is fine (it would be considered “twinking” a friend or new character), yet if you do the same action and the person sends you $10 through PayPal for the gift is it then considered a copyright violation because it violates Blizzards ToS?

That’s ridiculous and as such we don’t see the case ever being applied to the virtual currency market.

In fact we think that if the case is appealed it has a very good chance of being reversed. It’s simply too broad in its scope"

I'm not so sure a reversal is certain. Most of the case seemed like a slam dunk (IANAL, just a law geek). Glider helped customers violate the TOS. MDY made glider with the intent of skirting the TOS. That isn't really in contention.

The iffy bit comes from the "copyright infringement" bit. Our http://terranova.blogs.com/terra_nova/2008/05/wow-v-mdy-copyr.html>last post on this talked specifically about this bit. This is a novel bit of case law. The first sale doctrine is entrenched but who knows if courts will defend it across the board if companies try to finagle out of it by claiming that the purchase is a license (a claim made MUCH stronger with WoW's model than Autocad's).

As for application, this case doesn't provide too much fodder for suing gold sellers in general. The ruling isn't really that broad. My guess is that courts will be very hesitant to create "rights" or property from nothing and will defer to prior examples (like Frequent flyer miles) or operate directly from some unambiguous analogy. Regardless, the decision is likely to leave us (the game players) wanting--probably less so than if legislation were to remake the face of RMT, but it would be bad either way.

It seems to me that any case against a gold seller in general would hinge upon similar examples of corporate malfeasance , if they exist, but can't be made directly from this case. where is the tortious interference for IGE? Also, there is no copyright claim (the dollar signs in this case). The case would be different in many ways.

I'm glad that Blizzard managed to prevent a third party from spoiling WoW, but alarmed at the way they bent IP laws to do it. None of the reasons that copyright laws were created apply to this interpretation of them; they're being used for a purpose for which they weren't designed.

If Blizzard found an exploit like this in WoW, they'd fix it and ban the exploiters. Real-world laws work rather differently, though...

If you went to 7-11 and bought 10 cases of beer then stood out front of the store, and started selling the beer to people, and even started putting ads up, and putting flyers on peopls windshields. How long do you think you would be allowed to do this? (In the case of illeagle RMT it's more like standing in the store selling the store's merchandise and even advertising to the stores customers)

"The problem for the use of Glider is WoW, in operation, requires portions of the software to be copied to RAM. Users don't own the software technically -- they are licensees and their use is restricted to use in accordance with the license. That EULA/TOS prohibits certain forms of use of the software and Glider violates those terms -- hence the use of Glider while playing WoW = copyright infringement."

Sorry, but I'm not sure I understand this. Just where and when is the copyright infringed upon?

Is it when a user copies "...portions of the software..." to RAM? The game must, by default, do this to run.

Or is it the fact that the EULA/TOS are violated?

If the answer is no then how is it that MDY assisting people to perform the above constitutes a copyright infringement? No derivatives of the software were made and the software was not distributed to unpaying customers.

I'll admit I am not well versed in copyright law, but I do not see where the copyight was infringed upon. Maybe I'm missing something here. Could someone please clarify?

"Blizzard claims that the process RAM is copyrighted, and that copying that RAM is therefore protected by DMCA, and that launching a process is the same as copying it. By extension, Microsoft windows explorer.exe then violates the DMCA because it copies WoW by virtue of executing it. Any method used by the player to launch WoW.EXE is a violation of the DMCA. Thus, Blizzard has no basis for their claim, since Donnelly or anyone else has no means to determine what is an authorized parent process and what is not. Since Blizzard has no means, technically, to authorize which programs can be used to launch WoW.EXE, there is clearly NO CIRCUMVENTION OF COPYRIGHT MECHANISM. DMCA loses, Donnelly wins. I hope the court agrees.
"

From my IANAL (only studying corporate law) background, I agree with the above statements. I find that the court had no ground in which to rule in Blizzards favour on the basis of copyright infringement. This does indeed raise concerns for EULA/TOS's in future: that they can be misconstrued to warrant a claim of copyright infringement.

...but I wonder, was this a poor decision by the court or the byproduct of a poorly mounted defence by MDY?

"Blizzard claims that the process RAM is copyrighted, and that copying that RAM is therefore protected by DMCA, and that launching a process is the same as copying it. By extension, Microsoft windows explorer.exe then violates the DMCA because it copies WoW by virtue of executing it. Any method used by the player to launch WoW.EXE is a violation of the DMCA. Thus, Blizzard has no basis for their claim, since Donnelly or anyone else has no means to determine what is an authorized parent process and what is not. Since Blizzard has no means, technically, to authorize which programs can be used to launch WoW.EXE, there is clearly NO CIRCUMVENTION OF COPYRIGHT MECHANISM. DMCA loses, Donnelly wins. I hope the court agrees.
"

From my IANAL (only studying corporate law) background, I agree with the above statements. I find that the court had no ground in which to rule in Blizzards favour on the basis of copyright infringement. This does indeed raise concerns for EULA/TOS's in future: that they can be misconstrued to warrant a claim of copyright infringement.

...but I wonder, was this a poor decision by the court or the byproduct of a poorly mounted defence by MDY?

Albert: You might find it worthwhile to read the full judgement linked above. I found it surprisingly clear and sane, with very little lawyer speak. Blizzard isn’t claiming copyright infringement directly. They are claiming their rights as a copyright holder have been infringed. A very different thing.

A copyright holder has the right to limit the circumstances in which you can make copies. Blizzard allows you to make copies in your RAM to play the game, but not to run bots. So Windows is performing an allowed use, Glider isn’t. Pretty straightforward violation of license. It is the copyright act that gives you the right to create such a license. So in that sense it is a violation of copyright. Not in the sense of making an illegal copy, which is just one way you can violate a copyright holders rights.

INAL, but like some others here, I am rather worried by the way the court took the click-through as a fully binding agreement. We all know few people read the massive verbiage, or would understand it if they did. Its OK in this case, as Glider clearly knew they were very clearly violating the TOS. But I worry about submarine clauses that surface to get you later, long after you have built up a dependence on a piece of software.

While Bill has written a treatise on copyright law and certainly knows his stuff, I think his problem here is more with the status of copyright doctrine in the Ninth Circuit than with the decision of this particular court.

I *do* think he's right, though, that the merits of the tortious interference claims here probably colored the copyright analysis.

Blizzard is saying that the point of WoW is to acquire assets, just as the point of bowling might be to knock down pins. It's hard to disagree with that. As far as I can tell, that is how WoW is played.

But just because you "acquire" things within a virtual environment, this does not mean that you legally own those things and therefore require compensation if your account is closed. That's a virtual property ownership question, which was what was at issue in Bragg, but wasn't litigated here (though the tortious interference portion of the opinion says some really interesting and evocative things, imho).

The copyright ruling is premised on a violation of the scope of the contractual license, not a virtual property theory.

I personally thought it should just be settled in the same manner as a standard Gentlemen's Club or other such Club is protected and legally allowed to determine who is allowed to enter.

WoW is an exclusive environment in which patrons apply for paid membership, agreeing to the house rules prior to entry. As standard with most brick-and-mortar exclusive clubs, WoW does offer prospective members with a tour of the environment, also exposing them to the house rules. At no time would any person applying for membership be unaware of the rules prior to joining. These rules, such as property rights over equipment and gold, as they all belong to Blizzard Entertainment, can be enforced legally.

Gold Farming would be the same as applying for membership under false pretenses, with intent to defraud the corporation, and result in the illegal sale of Blizzard Entertainment property with intent to profit.

I know it's kind of a hypothetical scenario, but how valid is this viewpoint? We've used this analogy a lot in explaining how players don't really have direct or explicit control over how a world is run, but would it stand up to court? And is there a reason Blizzard didn't take this tactic? Besides a lack of imagination, I mean.

I think the court got it very wrong on the contract issue. #1 is conduct of the defendant. The root of this is there are innocent uses of a tool. If you use Glider to avoid Carpel Tunnel or Cardiac problems due to the repetitive nature of the game. Or to avoid neglecting friends/family while still keeping up with the Joneses who don't have any. If you use it for instances without any excess - not monopolizing content... most would consider it fair, would they not?

So Blizzard's countermeasures include scanning the user's applications and terminating Glider and any other tool they've unilateraly decided is not good, no matter what the tool is being used for. That is what makes for bad business in terms of banning innocent customers - not any action on the part of the defendant. The actions of the defendant prevent the wholesale banning of innocent avatars.

#2 is motive, same thing. Carpel Tunnel. Cardiac Problems. Neglecting friends and Family (and homework in the case of one kid who posted his grades went up in school due to Glider). You could also say profit was a motive but there SHOULD be a profit motive in making tools that avoid the risks of the above issues.

Part of #1 also is valid contract, which we've talked about. One thing that struck me about the opinion on click throughs, "One wonders what more could be done to make clear that the purchaser
is a licensee, not an owner, of the software." I don't know if the point was so much ownership but that copyright can not govern fair use. One wonders if it is possible to explain to somebody in a legal document who has never played one of these games why anybody would pay extra for the privilege of actually not playing the game they pay for. And how and why that is against the rules.

#5 Aside from the above social concerns, not explicitly referenced in the fifth factor which deals with competition in the marketplace, but more towards copyright misuse, "there is no evidence that Blizzard has
sought to bar third parties from developing competing games"... there is also no evidence that phone companies or cable companies sought to bar third parties from building a fiber optic network. Any competing game that could beat WoW in terms of EBITDA growth would be immediately cloned by Blizzard. Blizzard will not be the only botmaker in this market, one way or another, however.

Wall Data. This case is distinguishable because it involves a third party. And it doesn't involve installing one licensed copy on two machines, however dubious a copyright claim that is, evidenced by Wall Data's spectacular demise. (Root issue: don't mess with your customers like that)

Sorry if I went over 400 word limit, but this opinion can not be taken without response.

Why can Blizzard hold MDY responsible for what the user does? If MDY is selling the user a program that cannot be used without breaking a contract, why is that a problem for Blizzard? That should be a problem for the user, not Blizzard.

Is it illegal, in the USA, to make devices that might interfere with other entities copy-rights when used? Is this a US-only position, or does it exist elsewhere as well? Would this still stand if Glider also was usable with a game that welcomed third party software? Like Xerox copiers...

Very interesting chain of discussion. This is a wonderful site. As an avid WoW player and a practicing Intellectual Property lawyer, I have a host of mixed reactions to the ruling. However, I wanted to mention two particularly interesting points.

First, Blizzard may find themselves in a bind down the line when they have to prove up damages. Blizzard's goal of proving lots of damage will tend to highlight the demand for secondardy services. Demand for secondardy services will tend to deflate the allegedly negative impact on the WoW "experience." That will in the end cut against their damages story. This essentially reflects the point that such secondary services would not flourish if the gaming community did not support them.

Second, I was somewhat dismayed by the absence of any discussion about the validity of the EULA and TOU. By my reading, the EULA and TOU effctively give Blizzard the discretion to deem a wide range of things as violations based on a purely subjective judgment. That is, what secondardy services would NOT be a technical violation of the EULA and TOU? It's a fairly set principle of contract law that a provision that effectively gives one party a purely discretionary right like this is not enforceable. How close does Blizzard's EULA and TOU come to this?

Finally, as a passing remark, does any one know of a site that has actually surveyed WoW users to ask if they use bots, buy gold, if they quit because of these secondary markets, etc.? I would be interested to see how the statistics break down. Is there objective support for Blizzard's stated reasons against bots, farmers, etc?

@Ola -- Google for "contributory copyright infringement." (It is not limited to the US.)

@A Choung -- thanks for the kind words. We covered some of the ground in your questions in a prior discussion. Personally, I think the fact that WoW is structured as a game makes arguments about user demand for a "service" here suspect.

@Ola: Well, that is what the case is built on. The contributory infringement question isn't whether a defendant makes a technology that enables "copying" -- it's whether the defendant makes a technology that enables "infringement." Because the court concludes that use of Glider violates the WoW TOU and this = infringement, the sale of Glider = contributory infringement.

As I've said, I think the logic here is pretty consistent with 9th Circuit copyright law, but I think the 9th Circuit would do well to fix that doctrine and make it more sensible. Maybe that will happen on appeal, but maybe not -- the 9th Circuit has many good judges, but it still manages to disappoint me on a regular basis. :-)

I would have much rather seen the case decided on the basis of the tortious interference question.

One other point that might be interesting. To the extent that Blizzard asserts a persistent negative effect to the game environment and other "noncheating" players, in order to establish the damages portion of their case, this could open the door for lawsuits against Blizzard. This would effectively be admission of damage or injury to a player. I would think that such an injured player could have a breach of contract claim against Blizzard (to the extent that Blizzard's failure to preserve the integrity of the game is a breach). Depending on the damage assessment, it would be interesting to see what the number is per legitimiate player.

Forgive me for not understanding US copyright law practices, but AFAIK (layman's view) in other countries you wouldn't contribute unless your actions caused copying to take place that wouldn't otherwise have taken place. And sometimes not even then cf DVD-Jon and Pirate Bay.

In the case of making technology many countries allow reverse-engineering for the sake of making interfacing possible. It is bad enough that some jurisdictions allow this to be barred with patents, but doing so with copyright would be damaging to the market and allow monopolies to build unsurpassable fences around their turfs... A very bad development for "metaverse" and the semantic web if developers have to consider every clause in other people's contracts in order to make their software compatible with other systems.

I don't think "tortious interference" would solve this. Somehow makers of firearms designed for killing humans (rather than sports) get away, but developers of algorithms are somehow nailed. Where are the proportions in this?

Place the responsibility where it belongs, with Blizzard and their users.

For instance, maybe my "company" wants to provide users with client software that can connect to multiple services using a unified interface. Say, a piece of software that handles Second Life, Metaplace, IRC, and to a limited extent MMOs (perhaps just chat). Is it then my responsibility to check every single clause that may exist in any existing contract and future contract that takes place between other parties? Rulings which place the responsibility with third parties would make it so, effectively making it a very risky business to bridge the gaps between worlds or even provide tools for other products. What if Microsoft adopts this "practice"?

At some point maybe the legislators should start thinking about the collateral damage they are doing with patents and copyright practices. Legal devices introduced to PROMOTE innovation for the betterment of society (users and the community of businesses and organizations). There will be no metaverse as long as the system owners can shoot down any compatible system with more clauses in their endless set-in-concrete "contracts" (EULA,TOS,patents etc).

Now, I am not saying that one jurisdiction is better than another. They are all flawed and incapable of supporting a new interconnected infrastructure like the web for the betterment of society. Legal devices that were good for books and manufacturing machines are not good for the web. The result is that the web is bounded by rather reactionary views set firmly in the industrial revolution. E.g. Google wouldn't be able to run their service in my country with their exessive caching policy because copyright laws are designed for printed matter, DMCA etc, etc.

Let me hastily add that it is very tempting to take Blizzard's side in this particular instance since Glider is an "evil-doer", but I am more interested in the wider implications which in my views go way beyond "cheating" in a past-time. Which is rather insignificant in the big picture.

If you did, would the folks who make those tools be liable for tortious contractual interference? Although, from the way operators commit supposed virtual tort upon their players with their endless nerfs they might do well to employ some of those tools themselves.

Seems like the tort claim is based on excessive use. 400K complaints. How many of those complaining accounts show excessive use, use above the balance line? How many of those complaints are against other bots or even non-botting players? And how many of those would not complain at all if botting was allowed (this indicates no tort)? If all players combined show excessive use over the balance line on average, is the whole world harming the game?

The term vicarious copyright infringment of course conjures Napster, Grokster and a Supreme Court decision. With obvious differences to this case in terms of bots being fair use, not a substitute for payment, not copying anything persistent, etc. But the legal actions are similar, how long until individual players, or even non-players get sued? When they brought down Napster, 3 other tools popped up over night to drag the litigation out over years.

Might be easier to y'know turn off those faucets after a while or something. At least add something about excessive use in section 4 of the TOS if lawyers are so much cheaper than game designers these days.

Do we need a different term than 'accounts' to help drive home that we are not selling our software to players but we are selling an aspect of an ongoing licensing process?

The outcome leaves me feeling a little uneasy in failing to answer the question "Is a game client a seat or a sandwich?" and so doesn't resolve the issue of whether an operator is entitled in law to develop and operate an online game as a service to which they can stipulate exclusivity on providing access to.

If it were, then we ought to be able to state simply that you are licensed to make use of our service only by directly using an unmodified copy of the most recent client and data provided by ourselves, that you may not operate it through unlicensed 3rd party applications and that developing or using a 3rd party application to application or tool to modify its behavior (such as denying the application to provided data or cause data sent or received in its operation to be discarded or omitted or modified) is cause for termination of the license...